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1969 (1) TMI 86
Issues Involved:
1. Legality of the warrant issued by the Chief Presidency Magistrate.
2. Jurisdiction of the Central Magistrate, Hong Kong, under the Fugitive Offenders Act, 1881.
3. Validity of the extradition request made by the Government of India.
4. Applicability of the Fugitive Offenders Act, 1881, post-Indian independence.
5. Compliance with the Extradition Act, 1962.
Issue-wise Detailed Analysis:
1. Legality of the Warrant Issued by the Chief Presidency Magistrate:
The Chief Presidency Magistrate issued a non-bailable warrant for the arrest of More, believing there was prima facie evidence of his involvement in a criminal conspiracy. The warrant was forwarded to the Ministry of External Affairs for extradition purposes. The High Court held that the warrant was invalid because it was issued under the Fugitive Offenders Act, 1881, which was no longer applicable post-independence. However, the Supreme Court found that the Chief Presidency Magistrate had the authority to issue the warrant based on the evidence and that the procedure followed was not illegal or irregular.
2. Jurisdiction of the Central Magistrate, Hong Kong, Under the Fugitive Offenders Act, 1881:
The Central Magistrate in Hong Kong endorsed the warrant and ordered More's arrest, stating that the warrant was issued by a lawful authority. More was arrested, and his objections regarding the jurisdiction were overruled. The Supreme Court noted that the Hong Kong Magistrate acted according to the municipal law of Hong Kong, and his actions could not be challenged in the Indian courts.
3. Validity of the Extradition Request Made by the Government of India:
The Government of India, through the Ministry of External Affairs, made a requisition for More's extradition based on the warrant issued by the Chief Presidency Magistrate. The High Court questioned the validity of this request, citing the absence of a notified order under the Extradition Act, 1962. The Supreme Court, however, held that the extradition request was valid as it was made through diplomatic channels, and the Colonial Secretary of Hong Kong had the authority to act on it.
4. Applicability of the Fugitive Offenders Act, 1881, Post-Indian Independence:
The High Court had previously ruled that the Fugitive Offenders Act, 1881, was inapplicable post-independence. The Supreme Court acknowledged this but noted that the Act continued to be honored by other Commonwealth countries. The Court cited previous cases where British courts complied with extradition requests from Commonwealth republics, indicating that the Act still had practical relevance.
5. Compliance with the Extradition Act, 1962:
The Extradition Act, 1962, was enacted to consolidate and amend the law relating to the extradition of fugitive criminals. The High Court argued that the procedures under this Act were not followed, rendering the extradition request invalid. The Supreme Court disagreed, stating that the absence of a notification under the 1962 Act did not bar the Government of India from securing extradition through diplomatic channels.
Conclusion:
The Supreme Court allowed the appeal, set aside the High Court's order, and dismissed More's writ petition. The Court upheld the legality of the warrant issued by the Chief Presidency Magistrate and validated the extradition request made through diplomatic channels. The judgment clarified that the Fugitive Offenders Act, 1881, although not explicitly repealed, continued to be honored by other Commonwealth countries, and the procedures followed did not violate any laws.
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1969 (1) TMI 85
Issues:
Challenge of university decision to cancel exam result and debar student for alleged malpractice in possession of unauthorized material during exam.
Analysis:
The petitioner, a student, challenged the university's decision to cancel his exam result and debar him due to alleged malpractice during the Pre-University Examination in 1968. The charges included possession of unauthorized material and using it to answer exam questions, which violated the university rules. The petitioner denied the charges, claiming the invigilator had a grudge against him and fabricated the evidence. The petitioner requested to cross-examine the invigilator, but the university denied the request.
The petitioner argued that the principles of natural justice required the right to cross-examine witnesses, citing a Supreme Court case and an English decision. However, the court clarified that the right to be heard does not necessarily include the right to cross-examine, and the rules of natural justice vary based on statutory provisions. The court emphasized that quasi-judicial bodies like the Malpractices Enquiry Committee are not bound by court procedures but must provide a fair opportunity for the party to explain the allegations.
The Enquiry Committee's procedure was found to be in compliance with the principles of natural justice. The petitioner's defense that the incriminating material was planted by the invigilator was refuted with evidence showing discrepancies between the invigilator's handwriting and the material. The petitioner's confession to the Centre Superintendent further weakened his defense. The Enquiry Committee's report confirmed the use of the incriminating material in the exam answers, leading to the cancellation of the petitioner's exam result and his debarment from future exams.
The court dismissed the writ petition, ruling that the principles of natural justice were followed, and the petitioner's false defense did not warrant summoning the invigilator for cross-examination. The decision to cancel the exam result and debar the petitioner was upheld, and no costs were awarded. Judge Bala Krushna Patra concurred with the judgment.
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1969 (1) TMI 84
Issues Involved:
1. Validity of the partition deed executed on 28th April, 1944.
2. Whether the 12 pieces of land were joint family properties or self-acquisitions of Goudappa.
3. Legitimacy of the sale deed Ex. 159 regarding survey plots Nos. 43 and 77.
Detailed Analysis:
1. Validity of the Partition Deed Executed on 28th April, 1944:
The primary issue was whether the partition deed executed by Goudappa and Apparaya on 28th April, 1944, was a sham transaction intended to defeat the rights of the widows. Both the trial court and the High Court found that the partition deed was not genuine and was executed for an ulterior purpose. The courts noted the unequal division of lands and the absence of the Panchas' signatures, which indicated the transaction was not genuine. The courts also observed that the brothers continued to live jointly and managed the properties together even after the partition deed. The Supreme Court upheld these findings, emphasizing that the concurrent findings of fact by the lower courts should be accepted as correct in an appeal by special leave. The Court rejected the appellants' argument that there was no evidence supporting the lower courts' findings.
2. Whether the 12 Pieces of Land Were Joint Family Properties or Self-Acquisitions of Goudappa:
The appellants contended that the 12 pieces of land were self-acquisitions of Goudappa, whereas the respondents claimed they were joint family properties. The Supreme Court reiterated the established legal principle that if a joint family possesses a nucleus of property, any acquisition made by a family member is presumed to be joint family property unless proven otherwise. Both lower courts found that the family had an adequate nucleus of joint family properties, which could have facilitated the acquisitions. The Supreme Court agreed with these findings, noting that the income from the nucleus was sufficient for the purchases. The Court dismissed the appellants' argument that Goudappa had a separate income from a business, as there was no substantial evidence to support this claim.
3. Legitimacy of the Sale Deed Ex. 159 Regarding Survey Plots Nos. 43 and 77:
The High Court allowed the cross-objection of the respondents concerning the sale deed Ex. 159, which related to survey plots Nos. 43 and 77. The appellants argued that the plaintiff did not specifically challenge this sale deed in the plaint. However, the Supreme Court pointed out that the plaintiff had challenged all the alienations in the schedule to the plaint, which included these survey plots. The High Court found that defendant No. 3, who was a minor at the time of the sale, had no property of her own and that the sale was conducted by Goudappa as her guardian. The sale was deemed without consideration and not genuine, thus not binding on the plaintiff. The Supreme Court upheld this finding.
Conclusion:
The Supreme Court affirmed the judgment of the Bombay High Court dated 12th December, 1962, dismissing the appeal with costs. The partition deed was found to be a sham transaction, the 12 pieces of land were deemed joint family properties, and the sale deed Ex. 159 regarding survey plots Nos. 43 and 77 was invalid and not binding on the plaintiff.
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1969 (1) TMI 83
Issues Involved:
1. Jurisdiction of the High Court to try the suit.
2. Whether electricity is considered "goods" within the meaning of Clause 4(iv) of the First Schedule of the City Civil Court Act, 1953.
Issue-wise Detailed Analysis:
1. Jurisdiction of the High Court to Try the Suit:
The primary issue raised was whether the High Court has jurisdiction to try the suit, considering it involved the supply of electricity and not traditional "goods." The defendant argued that the City Civil Court should have jurisdiction as the claim was for Rs. 7460.06, which is below the Rs. 10,000 limit specified in Section 5(ii) of the City Civil Court Act. The plaintiff countered that under Clause 4(iv) of the First Schedule of the City Civil Court Act, which deals with transactions exceeding Rs. 5000 related to the buying or selling of goods, the High Court retains jurisdiction.
The Court examined the language and intent of the City Civil Court Act, emphasizing that the Act aimed to relieve the High Court's Original Side of pressure by allocating certain cases to the City Civil Court. However, for commercial transactions exceeding Rs. 5000, the High Court retained jurisdiction. The Court concluded that the suit fell within this category, thereby affirming its jurisdiction.
2. Whether Electricity is Considered "Goods":
The crux of the legal debate centered on whether electricity falls within the definition of "goods" as used in Clause 4(iv) of the First Schedule of the City Civil Court Act. The defendant argued that electricity, being intangible and merely a form of energy, should not be classified as "goods." The plaintiff, however, contended that electricity should be considered "goods" based on the broad definitions provided in the Constitution and the Indian Sale of Goods Act.
The Court analyzed various arguments and authorities:
- Constitutional and Statutory Definitions: Article 366(12) of the Constitution defines "goods" broadly to include all materials, commodities, and articles. Section 2(7) of the Indian Sale of Goods Act defines "goods" as every kind of movable property except actionable claims and money. The Court found these definitions sufficiently broad to encompass electricity.
- Judicial Precedents: The Court reviewed several cases, including the Privy Council's decision in Babulal Choukhani v. King Emperor, which recognized the theft of electricity, and the Division Bench of the Allahabad High Court in Naini Tal Hotel v. Naini Tal Municipality, which held that electric energy is movable property and thus "goods."
- Commentaries and Doubts: The Court noted the doubts expressed in Pollock and Mulla's commentary on the Indian Sale of Goods Act and the hesitant observations in English cases like County of Durham Electrical Power Distribution Co. v. Commissioner of Inland Revenue. However, these doubts were not decisive, and no authoritative ruling had excluded electricity from being considered "goods."
The Court concluded that electricity should be considered "goods" within the meaning of Clause 4(iv) of the First Schedule of the City Civil Court Act. The agreement for the supply of electricity was deemed a mercantile document, falling under the jurisdiction of the High Court.
Conclusion:
The High Court held that it has jurisdiction to try the suit and that electricity is considered "goods" within the meaning of the relevant statutory provisions. Consequently, the Court decreed the amount claimed with interim interest, interest on judgment at 6% per annum, and costs.
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1969 (1) TMI 82
Issues Involved:
1. Validity of Sections 53 and 67 of the Bombay Town Planning Act, 1955.
2. Adequacy of compensation under Article 31(2) of the Constitution.
3. Relevance of the principles for determining compensation.
4. Alleged violation of Article 14 of the Constitution.
Detailed Analysis:
1. Validity of Sections 53 and 67 of the Bombay Town Planning Act, 1955
The High Court of Gujarat declared Sections 53 and 67 of the Bombay Town Planning Act, 1955, ultra vires insofar as they authorize the local authority to acquire lands under a town-planning scheme. The Supreme Court analyzed the legislative intent behind the Act, which aimed at planned and controlled development in urban areas to provide better living conditions. The Court noted that the Act was modeled on the Bombay Town Planning Act, 1915, with significant improvements. Sections 53 and 67 were designed to ensure that lands required by the local authority for public purposes vest absolutely in the local authority free from all encumbrances, and to make financial adjustments for reconstituted plots.
2. Adequacy of Compensation under Article 31(2) of the Constitution
The High Court held that the Act violated Article 31(2) because the compensation was not a "just equivalent" of the property acquired, as it was based on market value at the date of the declaration of intention to make a scheme, not at the date of acquisition. The Supreme Court, however, clarified that after the Fourth Amendment of the Constitution, the adequacy of compensation could not be questioned. The Court emphasized that compensation need not be in terms of money alone and could include other forms of recompense. The Act specified principles for determining compensation, which were deemed sufficient under Article 31(2).
3. Relevance of the Principles for Determining Compensation
The Supreme Court examined whether the principles laid down in Sections 67 and 71 of the Act were relevant for determining compensation. The Court found that the principles were indeed relevant and not arbitrary. The Act provided a method for adjusting the market value of the original plot against the reconstituted plot, ensuring that the owner received fair compensation. The Court overruled the previous decision in the Metal Corporation case, which had held that the principles were irrelevant.
4. Alleged Violation of Article 14 of the Constitution
The respondent contended that Sections 53 and 67 violated Article 14 because the State could acquire land under the Land Acquisition Act, 1894, or the Town Planning Act, leading to different compensation outcomes. The Supreme Court rejected this argument, noting that the Town Planning Act provided a specific method for acquiring land for town-planning purposes, distinct from the Land Acquisition Act. There was no option for the local authority to choose between the two Acts, thereby eliminating any potential for arbitrary discrimination.
Conclusion
The Supreme Court set aside the High Court's order declaring Sections 53 and 67 ultra vires and remanded the case for further consideration of other contentions raised by the respondent. The appeal was allowed, and the order of costs passed by the High Court was set aside, with no order as to costs in the Supreme Court.
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1969 (1) TMI 81
Issues:
Validity of imposition of water tax by Municipal Board, Sitapur under U.P. Municipalities Act, 1916.
Detailed Analysis:
1. Compliance with Procedure for Imposing Tax:
The Allahabad High Court quashed the water tax imposed by the Municipal Board, Sitapur, citing non-compliance with the procedure outlined in Sections 131 to 135 of the U.P. Municipalities Act, 1916. The High Court held that the levy was invalid due to the Board not following the prescribed procedure for imposing the tax.
2. Publication of Preliminary Proposal and Draft Rules:
The Municipal Board passed a special resolution framing the proposal for the water tax, which included levying the tax at a rate of 12% per annum on the annual value of buildings and lands. The draft rules were duly prepared and published in a local paper, but the proposal was not separately published. However, objections were filed, considered, and modifications were made to the proposal, reducing the tax rate to 10% and exempting certain properties.
3. Procedural Defects and Cure under Section 135 Sub-section (3):
The respondents raised objections regarding the non-publication of the preliminary and modified proposals as required by the Act. However, the Supreme Court held that the procedural defects were cured by Section 135 Sub-section (3) since the Municipal Board had the power to levy the tax, passed the necessary resolutions, and the defects were not fundamental, causing no substantial prejudice to the municipality's inhabitants.
4. Precedents and Compliance with Publication Requirements:
The Court referred to previous cases where defects in publication were considered cured by the statutory provision similar to Section 135 Sub-section (3). The Court found substantial compliance with the publication requirements, ensuring that the inhabitants were informed of the proposals and had the opportunity to raise objections.
5. Conclusion and Dismissal of Writ Petitions:
The Supreme Court allowed the appeals, setting aside the High Court's order and dismissing the writ petitions. The Court emphasized that the procedural irregularities in the imposition of the water tax were not fundamental and did not invalidate the levy, as the necessary steps were taken in accordance with the Act, as evidenced by the notification under Section 135 Sub-section (2) being conclusive proof of the tax imposition.
In conclusion, the Supreme Court upheld the imposition of the water tax by the Municipal Board, Sitapur, emphasizing that the procedural defects were not substantial and were cured by the relevant statutory provision.
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1969 (1) TMI 80
Issues Involved:
1. Determination of the proper valuation method for shares in a private company for estate duty purposes.
2. Consideration of the extent of information available to hypothetical purchasers.
3. Evaluation of the impact of confidential information on share valuation.
Detailed Analysis:
1. Determination of the Proper Valuation Method for Shares in a Private Company for Estate Duty Purposes:
The principal issue revolves around the valuation of shares for estate duty purposes under section 7(5) of the Finance Act, 1894. The section stipulates that the principal value of any property shall be estimated as the price which, in the opinion of the commissioners, such property would fetch if sold in the open market at the time of the deceased's death.
The court acknowledged the precedent set by Attorney-General v. Jameson and Inland Revenue Commissioners v. Crossman, which established that the valuation must assume that a purchaser would be entitled to transfer the shares notwithstanding any restrictions in the articles of association. This hypothetical sale must be considered as one between a willing vendor and a willing purchaser.
2. Consideration of the Extent of Information Available to Hypothetical Purchasers:
Three possibilities were debated regarding the information available to a hypothetical purchaser:
- Published Information Standard: The purchaser would have access only to the company's accounts and any other information made available to shareholders or the public.
- Holt Standard: In addition to published information, the purchaser would have any information the board of directors would have provided upon inquiry.
- Crown's Standard: The purchaser would have all information that would normally be made available to a genuine intending purchaser, including confidential information that a willing purchaser would require.
The court ultimately rejected the Holt Standard, which depends on the subjective willingness of the board to disclose information, as it could lead to inconsistent and unreliable valuations. The court favored the Crown's Standard, asserting that a prudent purchaser would make all reasonable inquiries and receive true and factual answers.
3. Evaluation of the Impact of Confidential Information on Share Valuation:
The court examined whether confidential information, such as interim monthly statements and prospects of the company going public, should be considered in the valuation. The evidence showed that substantial blocks of shares in private companies are often sold with the board providing confidential information to prospective purchasers to facilitate the sale.
The court concluded that excluding such information would not reflect the true market value of the shares. It was determined that the hypothetical purchaser should be deemed to have access to all relevant information, including confidential reports that would affect the valuation.
Conclusion:
The court decided in favor of the Crown's appeal, establishing that the proper price for the shares should include the value of confidential information. Consequently, the valuation of the shares for estate duty purposes was set at lb4 10s per share, reflecting a more accurate market value considering all relevant information.
Separate Judgments:
- Harman L.J.: Emphasized the importance of assuming the purchaser would have access to all relevant facts, including confidential information, to ensure a fair valuation.
- Widgery V. L.J.: Supported the Crown's Standard, highlighting the need for a valuation method that reflects the true market conditions and the information a prudent purchaser would require.
- Gross L.J.: Criticized the Holt Standard for its reliance on subjective board decisions and endorsed the Crown's Standard for providing a more realistic and consistent basis for valuation.
Final Orders:
- Appeal allowed with costs in the Court of Appeal.
- No order as to costs below.
- Application by appellants for a certificate for three counsel refused.
- Leave to appeal to the House of Lords granted.
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1969 (1) TMI 79
Issues Involved:
1. Validity of the Orissa Kendu Leaves (Control of Trade) Act, 1961.
2. Infringement of fundamental rights under Articles 19(1)(f) & (g) and Article 14.
3. Legality of the Government's scheme for advance purchase contracts by private negotiation.
4. Allegations of mala fide actions by the Government.
5. Discrimination in the tender process for the sale of Kendu leaves.
Issue-wise Detailed Analysis:
1. Validity of the Orissa Kendu Leaves (Control of Trade) Act, 1961:
The Supreme Court examined the Orissa Kendu Leaves (Control of Trade) Act, 1961, which established a state monopoly on the trade of Kendu leaves. The Act was previously upheld in Akadasi Padhan v. The State of Orissa (1962), where the Court ruled that the creation of a state monopoly in Kendu leaves was protected by Article 19(6) as amended by the Constitution (First Amendment) Act, 1951. The Court found that the fixation of prices under Section 4 was reasonable and in the interest of the general public under Articles 19(5) and 19(6). However, the Court also noted that agents appointed under the Act were not acting strictly as government agents but were trading on their own account, rendering those agreements invalid.
2. Infringement of fundamental rights under Articles 19(1)(f) & (g) and Article 14:
The appellants argued that the principal provisions of the Act infringed their fundamental rights under Articles 19(1)(f) & (g) and Article 14. They contended that Sections 3 and 4, and Rule 7(5) infringed their rights under Article 19(1)(f) and (g), while Sections 5, 6, and 9 contravened the equality clause of the Constitution. The Court reiterated that the state monopoly in Kendu leaves was reasonable and in the public interest, thus protected under Article 19(6)(ii). However, the schemes adopted by the Government for the sale of Kendu leaves were found to be discriminatory and imposed unreasonable restrictions on the right to carry on business, violating Articles 19(1)(g) and 14.
3. Legality of the Government's scheme for advance purchase contracts by private negotiation:
The Government of Orissa had adopted a scheme to enter into advance purchase contracts with certain traders through private negotiation, rather than through open competition. The High Court held that the Government's discretion under Section 10 of the Act to dispose of Kendu leaves "in such manner as the Government may direct" was not arbitrary and was not amenable to writ jurisdiction. However, the Supreme Court found that the schemes were discriminatory as they restricted the right to make offers to a limited class of persons, effectively shutting out other traders and new entrants, thus violating Articles 19(1)(g) and 14.
4. Allegations of mala fide actions by the Government:
The appellants alleged that the Government's actions were mala fide and intended to benefit party supporters. They argued that the scheme was a "fraud on the Constitution" and aimed at increasing party funds to the detriment of public revenue. The Supreme Court noted that while the High Court found no evidence of mala fides, the Government's actions were still subject to scrutiny for reasonableness and non-discrimination. The Court emphasized that the Government's discretion must be exercised in the public interest and not for private gain.
5. Discrimination in the tender process for the sale of Kendu leaves:
The appellants contended that the Government's tender process was discriminatory as it favored certain old contractors, excluding others from participating. The Supreme Court found that the classification based on the previous year's performance was not a reasonable basis for exclusion and had no direct relation to the public interest objectives of the monopoly. The Court held that the schemes were ex facie discriminatory and imposed unreasonable restrictions on the right to carry on business, thus violating Articles 19(1)(g) and 14.
Conclusion:
The Supreme Court concluded that both the schemes adopted by the Government for the sale of Kendu leaves were violative of the fundamental rights under Articles 19(1)(g) and 14. The Court directed that tenders for the purchase of Kendu leaves be invited from all interested persons in the next season, ensuring that the State acts in the interest of the general public and not any specific class of traders. The Court made no further orders in the petitions and directed that there be no order as to costs in all the appeals.
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1969 (1) TMI 78
Issues Involved:
1. Whether the appellants can redeem the earlier mortgages based on Ext. F being a mortgage by conditional sale.
2. Whether the appellants can redeem the earlier mortgages treating Ext. F as a pure mortgage without possession.
Detailed Analysis:
Issue 1: Redemption Based on Ext. F as a Mortgage by Conditional Sale
1. Context and Arguments:
- The appellants argued that Ext. F, a hypothecation bond, was a mortgage by conditional sale and had worked itself out as a sale, giving them the right to redeem the earlier mortgages (Exts. XI and XII).
- The learned Advocate General contended that even if the right to claim the amount due under Ext. F was barred by limitation, the right of redemption of the earlier mortgages remained unaffected.
2. Legal Framework and Interpretation:
- The Transfer of Property Act (T.P. Act) was not statutorily applicable in Travancore but its principles were followed.
- Section 58(c) of the T.P. Act defines a mortgage by conditional sale, requiring the transaction to have the semblance of a sale initially.
- The court examined whether Ext. F satisfied the conditions of Section 58(c). It was noted that Ext. F was styled as a "Sthreedhana Eedadharam" and was executed for 14,000 Fanams by Meeran Pillai in favor of his daughter and her husband.
3. Judicial Precedents and Analysis:
- Previous cases such as Velandy Vadhiar v. Sankarapandian Mudaliar and Padmanabha Pillai v. Umamaheswara Iyer were referenced, which followed the principles of the T.P. Act to determine if a transaction was a mortgage by conditional sale.
- The court emphasized that a transaction must initially appear as a sale to qualify under Section 58(c). Ext. F did not meet this criterion as it was essentially a mortgage with a condition that treated it as a sale upon non-payment, which was deemed a "clog on the right of redemption."
4. Conclusion:
- The court concluded that Ext. F was not a mortgage by conditional sale and the condition for it to work out as a sale was invalid. Therefore, the appellants could not redeem the earlier mortgages on this basis.
Issue 2: Redemption Treating Ext. F as a Pure Mortgage Without Possession
1. Legal Provisions and Limitation:
- Article 119 of the Travancore Limitation Act (similar to Article 132 of the Indian Limitation Act, 1908) provided 12 years for recovery of money charged on property.
- The right to recover the money due under Ext. F was barred by limitation, but the right to redeem the mortgages (Exts. XI and XII) was not barred, as per Article 136 of the Travancore Limitation Act (similar to Article 148 of the Indian Limitation Act, 1908).
2. Arguments and Interpretation:
- The learned Advocate General argued that the appellants, as puisne mortgagees, had a right under Section 91 of the T.P. Act to redeem the earlier mortgages, and this right was not barred by limitation.
- The court examined whether a mortgagee whose right to recover the mortgage amount was barred by limitation still retained an interest in the property sufficient to claim redemption under Section 91(a) of the T.P. Act.
3. Judicial Precedents and Analysis:
- Cases like Jokhu Bhunja v. Sitla Baksh Singh and Varaha Devaswom v. Ummer Sait were discussed, where time-barred debts charged on property were allowed to be tacked on during redemption.
- The court distinguished between a mortgagee in possession and one not in possession, emphasizing that a mortgagee not in possession and whose right to recover the mortgage amount was barred by limitation did not have a subsisting interest in the property.
4. Conclusion:
- The court held that a mortgagee without possession and whose right to recover the mortgage amount was barred by limitation could not be considered as having a subsisting interest in the property. Therefore, the appellants could not redeem the earlier mortgages treating Ext. F as a pure mortgage without possession.
Final Judgment:
The appeal was dismissed with costs, affirming that the appellants had no right to redeem the earlier mortgages based on either argument.
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1969 (1) TMI 77
Issues:
Challenge to the validity of Sections 23 and 23-D of the Foreign Exchange Regulation Act under Article 14 of the Constitution.
Analysis:
The petitioner, a sole proprietor trading under the name Messrs New India Corporation, filed four Writ Petitions challenging notices from the Director of Enforcement Directorate for alleged contraventions of the Foreign Exchange Regulation Act. The main contention was that Sections 23 and 23-D of the Act were invalid under Article 14 of the Constitution. The petitioner sought prohibition of adjudication proceedings, arguing that the choice between adjudication and criminal prosecution lacked guidance for the Director of Enforcement, citing the State of West Bengal v. Ansar Ali case principles.
The key argument revolved around the provisions of Section 23 and Section 23-D of the Act. Section 23 outlined penalties for contraventions, including adjudication by the Director of Enforcement or court prosecution. The petitioner contended that the Director's discretion lacked guidance in choosing the appropriate procedure. The Adjudication Proceeding and Appeal Rules, 1957 governed the adjudication process under Section 23-D. However, the petitioner argued that the rules did not sufficiently guide the Director in making the choice between adjudication and court prosecution.
The Court referred to the Supreme Court rulings in Shanti Prasad Jain and Union of India v. Sukumar Pyne cases, which upheld the validity of Sections 23 and 23-D. The Court highlighted that the Director's discretion to transfer cases to court under Section 23-D was not arbitrary and did not violate Article 14. The Court dismissed the petitioner's contentions, stating that the rulings of the Supreme Court had conclusively addressed the issues raised by the petitioner. Consequently, all four writ petitions were dismissed, and the petitioner was ordered to pay the respondents' costs.
In conclusion, the Court rejected the petitioner's challenge to the validity of Sections 23 and 23-D of the Foreign Exchange Regulation Act under Article 14 of the Constitution. The judgment emphasized the guidance provided by the Act and the Adjudication Rules, affirming the Director's authority to choose between adjudication and court prosecution. The Court's decision was based on the precedent set by the Supreme Court's previous rulings, upholding the constitutionality of the relevant provisions of the Act.
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1969 (1) TMI 76
Issues Involved:
1. Default in payment of rent.
2. Applicability of Section 13-A of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950.
3. Interpretation of "appeal" within the meaning of Clause (d) of Section 13-A.
4. Reopening of proceedings under Section 13-A.
Detailed Analysis:
1. Default in Payment of Rent:
The plaintiff-landlord filed a suit for arrears of rent and ejectment against the defendants-tenants on the grounds of non-payment of rent for more than twelve months and personal necessity. The trial court rejected the personal necessity plea but decreed the suit for arrears of rent and ejectment due to default in payment. The Senior Civil Judge, Jaipur, on appeal, set aside this judgment, giving the defendants the benefit of Section 13(4) of the Act. The High Court, on further appeal, decreed the suit for ejectment solely on the ground of default in payment of rent.
2. Applicability of Section 13-A:
Section 13-A was inserted in the Act by the Rajasthan Premises (Control of Rent and Eviction) Amendment Act No. 12 of 1965. The defendants applied under Clause (d) of Section 13-A, stating they had deposited the arrears of rent, interest, and costs, and requested the reopening of the decree passed on 8-4-1965. The plaintiff-landlord opposed this, arguing that the defendants' application for leave to appeal amounted to filing an appeal, thus disqualifying them from the benefits of Clause (d).
3. Interpretation of "Appeal":
The court examined whether an application for leave to appeal could be considered an "appeal" within the meaning of Clause (d) of Section 13-A. The learned single Judge initially held that the application for leave to appeal must be regarded as an "appeal," thereby disqualifying the defendants from the benefits of Clause (d). However, the appellate court disagreed, stating that an application for leave to appeal is merely a request for permission to file an appeal and cannot be considered an appeal itself.
4. Reopening of Proceedings:
The court emphasized that the legislative intent behind Section 13-A was to protect tenants from eviction by allowing them to pay arrears, interest, and costs. The court interpreted Clause (d) to mean that tenants against whom decrees for eviction had been passed on or after 21st March 1955 but before the commencement of the Amending Act, could apply for reopening the proceedings, regardless of whether they had filed an appeal or not. The court held that the defendants were entitled to make an application under Clause (d) and that their application should not have been dismissed on the ground that they had sought leave to appeal.
Conclusion:
The appeal was allowed, and the order of the learned single Judge was set aside. The case was remanded for disposal of the defendants' application under Section 13-A according to law. The court concluded that an application for leave to appeal cannot be regarded as an "appeal" within the meaning of Clause (d) of Section 13-A. The parties were directed to bear their own costs of the appeal.
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1969 (1) TMI 75
Issues Involved:
1. Validity of the Punjab Cattle Fairs (Regulation) Act, 1967.
2. Definition and scope of "cattle fair" versus "cattle market."
3. State monopoly on holding cattle fairs.
4. Restrictions on private individuals and local authorities from holding cattle fairs.
5. Authority of the State to declare private property as fair areas.
6. Fundamental rights under Articles 19(1)(b), 19(1)(d), 19(1)(f), and 19(1)(g).
7. Validity of Section 15 of the Act concerning the Cattle Fair Fund.
Detailed Analysis:
1. Validity of the Punjab Cattle Fairs (Regulation) Act, 1967:
The Act was initially challenged for being "vague and ambiguous," leading to the Punjab High Court striking it down. However, the Supreme Court held that the rule of striking down an Act for vagueness is alien to the Indian Constitutional system. The Legislature was competent to enact the law under Entry 28 of List II of the Seventh Schedule to the Constitution. The Act could not be invalidated solely on the ground of vagueness, and the defect was remedied by the Punjab Cattle Fairs (Regulation) Amendment Act 18 of 1968, which defined "cattle fair."
2. Definition and Scope of "Cattle Fair" versus "Cattle Market":
The Act differentiates between a "cattle fair" and a "cattle market." The definition of "cattle fair" in Section 2(bb) as a gathering of more than twenty-five persons for the general sale or purchase of cattle was upheld. The Act does not seek to monopolize all transactions of sale and purchase of cattle but only the conduct of cattle fairs.
3. State Monopoly on Holding Cattle Fairs:
The Act grants the State Government the exclusive right to hold, control, manage, and regulate cattle fairs. This monopoly is protected under Article 19(6) of the Constitution, which allows the State to create monopolies in certain trades or businesses.
4. Restrictions on Private Individuals and Local Authorities:
Section 3(2) of the Act prohibits any person or local authority from holding, controlling, managing, or regulating a cattle fair. This restriction is deemed reasonable and necessary to make the State monopoly effective.
5. Authority of the State to Declare Private Property as Fair Areas:
The State cannot declare private property or property of local authorities as fair areas without providing compensation as guaranteed under Article 31(2). The Act implicitly restricts the State to holding fairs on its own lands.
6. Fundamental Rights Under Articles 19(1)(b), 19(1)(d), 19(1)(f), and 19(1)(g):
- Article 19(1)(b) & 19(1)(d): The Act does not infringe the right to assemble peaceably or to move freely. It only restricts gatherings for the purpose of cattle fairs.
- Article 19(1)(f): The Act does not deprive citizens of their property but restricts the right to hold fairs, which is a necessary concomitant of the State monopoly.
- Article 19(1)(g): The Act's provisions relating to the State monopoly on cattle fairs are protected under Article 19(6) and do not impose unreasonable restrictions on the right to carry on trade or business.
7. Validity of Section 15 of the Act Concerning the Cattle Fair Fund:
Section 15, which authorizes the State to require local authorities to deposit funds for initial fair expenses, was declared invalid as it constitutes deprivation of property without compensation and is unreasonable.
Separate Judgments:
- Municipal Committee, Amritsar (Writ Petition No. 295 of 1968): The State's declaration of Municipal property as a fair area and the demand for Municipal resources were unauthorized and invalid.
- Sardara Singh (Writ Petition No. 362 of 1968): The State cannot hold a cattle fair on the petitioner's land without compensation. However, the petitioner cannot hold a cattle fair on his own land.
- Jagtar Singh (Writ Petition No. 443 of 1968): The declaration of the petitioner's leased land as a fair area was invalid. The petitioner's business was deemed a cattle market, not a fair, and he was not required to obtain a broker's license.
- Narain Singh and Another (Writ Petitions Nos. 444 and 365 of 1968): The petitioners were not entitled to hold cattle fairs but could continue their business of cattle markets on their own lands.
Conclusion:
The Supreme Court upheld the validity of the Punjab Cattle Fairs (Regulation) Act, 1967, as amended, while clarifying the scope of the State's monopoly and the rights of private individuals and local authorities. The restriction on holding cattle fairs was deemed reasonable, but the State's authority was limited to its own lands, and Section 15 was invalidated for being unreasonable.
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1969 (1) TMI 74
Issues:
1. Whether a document declaring certain properties as partnership assets is liable to be charged as a conveyance under the Indian Stamp Act.
2. Whether the document in question amounts to a conveyance by one of the partners to the partnership firm.
3. Whether the document should be considered a deed of partnership or a conveyance for stamp duty purposes.
Analysis:
1. The judgment pertains to a situation where a trading joint Hindu family was involved in partition proceedings, resulting in the creation of a partnership deed among ten parties, including one family member. The document declared certain properties as assets of the partnership firm. The Revenue Authority contended that the document could be charged as a conveyance under the Indian Stamp Act. The main issue was whether the document was liable to be charged as a conveyance or as a partnership deed under the relevant provisions of the Stamp Act.
2. The court observed that the acquisition of properties by one family member, as per the court decree, was essentially a joint acquisition by all parties involved. The argument was made that the document could be construed as a conveyance by the family member to the partnership firm. The court analyzed the intention behind the document and whether it constituted a conveyance or a partnership agreement, considering the contributions made by all partners towards the acquisition of the properties.
3. The court referred to legal precedents and principles, including Section 14 of the Partnership Act, to determine that the document was indeed a deed of partnership and not a conveyance. It highlighted that a partner can bring property into a partnership without a formal document, and the intention of the parties as reflected in the language of the document is crucial in determining whether it constitutes a conveyance. The court concluded that the document was a deed or agreement of partnership, chargeable to duty under a specific article of the Stamp Act.
In conclusion, the court held that the document declaring certain properties as partnership assets was not a conveyance but a deed of partnership, chargeable to duty under the relevant article of the Stamp Act. The judgment clarified the distinction between a conveyance and a partnership deed based on the intention of the parties and the language of the document, providing a comprehensive analysis of the legal principles involved in such cases.
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1969 (1) TMI 73
Issues Involved:
1. Legality of the detention orders under the Preventive Detention Act, 1950.
2. Requirement for the State Government to consider representations made by detainees before forwarding them to the Advisory Board.
3. Compliance with procedural safeguards under Article 22(5) of the Constitution.
Detailed Analysis:
1. Legality of the Detention Orders under the Preventive Detention Act, 1950
The petitioners sought a writ of habeas corpus for their release from detention under orders passed under Section 3(2) of the Preventive Detention Act, 1950. The detention orders were issued by the District Magistrate of Hooghly, citing the necessity to prevent actions prejudicial to the maintenance of essential supplies and services. The grounds for detention included specific instances of unauthorized transportation of rice, which were communicated to the detainees. The Advisory Board later confirmed the detention orders, and the Governor of West Bengal upheld them under Section 11(1) of the Act.
2. Requirement for the State Government to Consider Representations
The core argument presented by the petitioners was that their representations were not considered by the State Government before being forwarded to the Advisory Board. The respondent's counter-affidavits were vague and did not categorically deny this allegation. The court emphasized that Article 22(5) of the Constitution implicitly requires the State Government to consider detainees' representations as expeditiously as possible. The constitution of an Advisory Board does not absolve the State Government from this legal obligation. The court held that the right to make a representation includes the right to have it properly considered by the authority to whom it is made.
3. Compliance with Procedural Safeguards under Article 22(5) of the Constitution
The court underscored that Article 22(5) guarantees detainees the right to be informed of the grounds of detention and to make a representation against it. This right is independent of the duration of detention and the existence of an Advisory Board. The State Government must consider the representation promptly and take appropriate action. The failure to do so renders the detention order illegal. The court rejected the respondent's argument that the State Government need not consider the representation if a reference is to be made to the Advisory Board.
Conclusion
The court concluded that the detention orders against the petitioners, including Sk. Abdul Karim, Nirmal Chandra Jana, Sk. Ibrahim, and Nur Mohd., were illegal and ultra vires due to the State Government's failure to consider their representations before forwarding them to the Advisory Board. The procedural safeguards under Article 22(5) were mandatory, and non-compliance rendered the detention orders invalid. Consequently, the petitioners were entitled to be released. The petition was allowed.
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1969 (1) TMI 72
Issues Involved:
1. Conviction under Section 302 IPC and sentencing to death.
2. Conviction under Section 3 of the Explosive Substances Act and Section 326 IPC.
3. Acquittal of co-accused Nand Lal Sehgal.
4. Corroboration of the approver's evidence.
5. Application of the principle of issue-estoppel.
6. Validity of the hand grenade arrangement as described by the approver.
Detailed Analysis:
1. Conviction under Section 302 IPC and Sentencing to Death
The appellant, Piara Singh, was convicted under Section 302 of the Indian Penal Code (IPC) and sentenced to death by the Sessions Judge of Kapurthala. This conviction was based on the appellant's involvement in sending a bomb concealed in a parcel, which exploded and caused the deaths of Radhey Sham, Shadi Lal, and Charanjit Lal. The High Court confirmed this sentence, dismissing the appellant's appeal.
2. Conviction under Section 3 of the Explosive Substances Act and Section 326 IPC
Piara Singh was also convicted under Section 3 of the Explosive Substances Act and sentenced to five years of rigorous imprisonment. Additionally, he received another five years of rigorous imprisonment under Section 326 IPC for causing grievous injuries to several individuals. The High Court upheld these convictions as well.
3. Acquittal of Co-Accused Nand Lal Sehgal
Nand Lal Sehgal, who was tried alongside Piara Singh, was initially sentenced to life imprisonment under Section 302 read with Sections 109 and 113 IPC and to five years of rigorous imprisonment under Section 4 of the Explosive Substances Act. However, the High Court acquitted Nand Lal Sehgal, finding no independent corroboration of the approver's evidence implicating him. The High Court dismissed the State's revision petition seeking enhancement of Sehgal's sentence.
4. Corroboration of the Approver's Evidence
The prosecution's case heavily relied on the testimony of the approver, Mohinder Singh, who was granted pardon under Section 337 of the Code of Criminal Procedure. The High Court found sufficient corroboration of the approver's evidence against Piara Singh from multiple witnesses, including Nazar Singh (P.W. 22), Gian Singh (P.W. 23), Sardara Singh (P.W. 24), Amrik Singh (P.W. 25), and Sri Niwas (P.W. 27). The Court held that these testimonies, along with physical evidence like pieces of cloth found at the crime scene, corroborated the approver's account.
5. Application of the Principle of Issue-Estoppel
The appellant's counsel argued that the acquittal of Nand Lal Sehgal should lead to the rejection of the approver's evidence against Piara Singh, invoking the principle of issue-estoppel. The Court rejected this argument, clarifying that issue-estoppel applies only when the same issue has been distinctly raised and decided in earlier proceedings between the same parties. Since the parties in the present case were different, the principle of issue-estoppel was not applicable.
6. Validity of the Hand Grenade Arrangement as Described by the Approver
The appellant contended that the hand grenade could not have been arranged as described by the approver, suggesting inconsistencies in the expert's report. The High Court examined this argument in detail and found no substantial reason to doubt the approver's description of the bomb's arrangement. The Court concluded that the approver's account was credible and consistent with the physical evidence.
Conclusion
The Supreme Court dismissed the appeals, finding no merit in the arguments presented by the appellant. The convictions and sentences imposed by the lower courts were upheld, and the principle of issue-estoppel was deemed inapplicable in this case. The corroborative evidence was found sufficient to support the approver's testimony, leading to the affirmation of Piara Singh's guilt.
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1969 (1) TMI 71
Issues Involved:
1. Whether the implementation of the Indo-Pakistan Western Boundary Case Tribunal's award requires a constitutional amendment.
2. The nature of the dispute between India and Pakistan regarding the boundary in the Rann of Kutch.
3. The historical and legal basis for the claims of India and Pakistan over the disputed territory.
4. The role and authority of the executive in implementing international treaties and awards under the Indian Constitution.
5. The standing of the petitioners to challenge the implementation of the award.
Issue-Wise Detailed Analysis:
1. Whether the implementation of the Indo-Pakistan Western Boundary Case Tribunal's award requires a constitutional amendment:
The main contention was whether the award of the Tribunal, which delineated the boundary between India and Pakistan in the Rann of Kutch, involved cession of Indian territory, thus necessitating a constitutional amendment. The Supreme Court held that the award did not amount to cession of Indian territory but was a settlement of a boundary dispute. Consequently, the implementation of the award did not require a constitutional amendment. The Court emphasized that the executive power of the Union, under Article 73, extends to implementing treaties and awards without legislative intervention unless the rights of citizens or existing laws are affected.
2. The nature of the dispute between India and Pakistan regarding the boundary in the Rann of Kutch:
The dispute centered on the boundary between the State of Gujarat in India and West Pakistan in the Rann of Kutch. India claimed that there was a well-established boundary along the northern edge of the Rann, while Pakistan claimed that the boundary ran roughly along the 24th parallel, involving about 3,500 square miles of territory. The Tribunal was tasked with determining the correct boundary based on historical evidence, maps, and other documents. The Tribunal's award delineated the boundary, accepting India's claim to the Rann but awarding about 350 square miles to Pakistan.
3. The historical and legal basis for the claims of India and Pakistan over the disputed territory:
The historical evidence presented included various surveys, maps, and administrative records. The Macdonald Survey, Pullan Survey, and Erskine Survey were among the key pieces of evidence. The Tribunal found that the evidence was conflicting and inconclusive regarding the exercise of sovereign authority by either side over the disputed sectors. The Tribunal's award was based on the principle of effective control and historical usage, leading to the delineation of the boundary in a manner that recognized the historical presence and activities of both sides in different sectors.
4. The role and authority of the executive in implementing international treaties and awards under the Indian Constitution:
The Supreme Court discussed the executive's power to enter into and implement international treaties and awards. It was held that the executive has the authority to represent the State in international matters and to implement treaties and awards without legislative intervention, provided that the implementation does not infringe upon the rights of citizens or alter existing laws. The Court referred to Article 73, which extends the executive power to matters within the legislative competence of Parliament, and Article 253, which allows Parliament to make laws for implementing international agreements.
5. The standing of the petitioners to challenge the implementation of the award:
The Court examined the standing of the petitioners, who claimed that their fundamental rights under Article 19(1)(d) and (e) would be affected by the implementation of the award. The Court found that most petitioners had no direct or substantial interest in the disputed territory, with their claims being too tenuous to warrant judicial intervention. The only petitioner with a somewhat plausible claim was Mr. Madhu Limaye, who had attempted to enter the disputed area. However, the Court held that the implementation of the award did not involve cession of Indian territory and thus did not require a constitutional amendment, rendering the petitions and appeals without merit.
Conclusion:
The Supreme Court dismissed the petitions and appeals, holding that the implementation of the Tribunal's award did not constitute cession of Indian territory and did not require a constitutional amendment. The executive was within its authority to implement the award, and the petitioners lacked sufficient standing to challenge the implementation. The judgment emphasized the distinction between settling a boundary dispute and ceding territory, with the former falling within the executive's purview.
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1969 (1) TMI 70
Issues Involved:
1. Validity of Sections 53 and 67 of the Bombay Town Planning Act, 1955.
2. Adequacy of compensation under Article 31(2) of the Constitution.
3. Relevance of Article 31(5)(b)(ii) concerning public health and sanitation.
4. Justiciability of compensation principles under Article 31(2).
5. Alleged violation of Article 14 (Equality before the law).
Issue-Wise Detailed Analysis:
1. Validity of Sections 53 and 67 of the Bombay Town Planning Act, 1955:
The High Court of Gujarat declared Sections 53 and 67 of the Bombay Town Planning Act, 1955, ultra vires, as they authorized the local authority to acquire lands under a town-planning scheme, violating Article 31(2) of the Constitution. The Supreme Court, however, found that the Act specified principles for determining compensation, which were neither irrelevant nor illusory. Therefore, the Act did not infringe Article 31(2), and the sections were valid.
2. Adequacy of Compensation under Article 31(2) of the Constitution:
The High Court held that the compensation provided under the Act was not a just equivalent of the property expropriated, as it was based on the market value at the date of the declaration of intention to make a scheme, not the date of acquisition. The Supreme Court clarified that Article 31(2) as amended by the Constitution (Fourth Amendment) Act, 1955, precludes judicial review of the adequacy of compensation. The principles specified for determining compensation under the Act were deemed sufficient, and the Act was not invalid on this ground.
3. Relevance of Article 31(5)(b)(ii) Concerning Public Health and Sanitation:
The State argued that the Act fell under Article 31(5)(b)(ii) as it promoted public health and sanitation, thus exempt from Article 31(2). The Supreme Court rejected this contention, referencing the precedent in Deputy Commissioner & Collector, Kamrup v. Durga Nath Sharma, which held that laws for permanent acquisition of property do not fall under the exception in Article 31(5)(b)(ii).
4. Justiciability of Compensation Principles under Article 31(2):
The Supreme Court emphasized that post the Fourth Amendment, the adequacy of compensation is not justiciable. The principles specified in the Act for determining compensation were valid and not arbitrary. The Court overruled the decision in Union of India v. Metal Corporation of India Ltd., which had previously held that the principles laid down for compensation were irrelevant.
5. Alleged Violation of Article 14 (Equality Before the Law):
The respondent contended that Sections 53 and 67 violated Article 14, as they allowed different compensation methods for land acquired under the Town Planning Act and the Land Acquisition Act. The Supreme Court found no merit in this argument, noting that the Town Planning Act provided a specific method for acquiring land for town-planning purposes, and there was no arbitrary choice between different methods of acquisition. The provisions were not discriminatory and did not violate Article 14.
Conclusion:
The Supreme Court allowed the appeal, setting aside the High Court's order declaring Sections 53 and 67 ultra vires. The case was remanded to the High Court for further consideration of other contentions. The Supreme Court clarified that the principles for determining compensation under the Act were valid and not subject to judicial review for adequacy. The Act did not violate Articles 31(2) or 14 of the Constitution.
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1969 (1) TMI 69
Issues Involved:
1. Whether the dry dock constitutes "plant" under the Income Tax Act, 1952.
2. Whether the cost of excavation for the dry dock qualifies as expenditure on the provision of plant.
Detailed Analysis:
1. Whether the dry dock constitutes "plant" under the Income Tax Act, 1952:
The respondents installed a new dry dock at their shipyard, and the cost was divided into three parts: preliminary excavation, concreting, and ancillary plant. The respondents claimed that all the expenditures should qualify for the larger initial allowance under Chapter II of Part X of the Income-tax Act, 1952, which deals with machinery and plant. The appellants agreed for the ancillary plant but contended that only the smaller allowance under Chapter I, which deals with industrial buildings and structures, was due for excavation and concreting.
The Special Commissioners held that the larger allowance was due for concreting but not for excavation. The First Division held that the larger allowance was due for both.
The Commissioners found that the function of the dry dock was to lower ships into a position where they could be securely held out of water and inspected and repaired. The dock acted like a hydraulic chamber, and the valves and pumps were integral parts of the dock. The dock was not merely the setting in which ships were repaired but played an essential part in the operations.
The Commissioners referred to the definition of "plant" given by Lindley L.J. in Yarmouth v. France, which includes apparatus used by a businessman for carrying on his business. They concluded that the dry dock was not merely a structure but also qualified as plant because it played an active role in the functioning of the dock.
The Crown relied on the decision in Margrett v. Lowestoft Water & Gas Co., where it was held that a water tower was not "plant." However, the Commissioners distinguished the dry dock from the water tower, noting that the dry dock played a more active role and was subject to wear and tear.
The respondents argued that the whole dock was part of their plant used for their trade. The Commissioners and the First Division agreed, finding that the dry dock fulfilled the function of plant in the trader's operations and was not merely the setting or premises.
2. Whether the cost of excavation for the dry dock qualifies as expenditure on the provision of plant:
The second issue was whether the cost of excavation necessary to make room for the plant (dry dock) should be considered part of the expenditure on the provision of the plant under section 279(1) of the Income Tax Act, 1952.
The Commissioners held that the excavation expenditure was too remote from the provision of the dry dock and only attracted allowances under Chapter I. However, the First Division reversed this decision, finding that the excavation was a necessary preliminary to the construction of the dry dock and was covered by the provision of plant under section 279.
The appellants argued that "provision" could not include preliminary expenditure like excavation, relying on section 300 of the Act. However, it was noted that section 300 dealt with alterations to existing buildings incidental to the installation of machinery or plant, and "incidental" is a wider term than "necessary." The First Division found that section 279 covered necessary preliminary expenditure.
The appellants also referenced section 16(3) of the Finance Act, 1956, but it was found not applicable as it only applies where no allowance could be made under Chapter I or II.
The First Division concluded that the cost of excavation was indeed part of the provision of the plant and qualified for the larger initial allowance under Chapter II.
Conclusion:
The appeal was dismissed, affirming the First Division's decision that both the concreting and excavation costs qualified for the larger initial allowance under Chapter II of Part X of the Income Tax Act, 1952, as the dry dock was considered "plant" and the excavation was necessary for its provision.
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1969 (1) TMI 68
Whether a person holds an office of profit under a Government is the amount of control which the Government exercises over that officer?
Held that:- The power to appoint and dismiss respondent No. 1 does not vest in the Government or in any government servant. The power to control and give directions as to the manner in which the duties of the office are to be performed by respondent No. 1 also does not vest in the Government, but in an officer of the Company. Even the power to determine the question of remuneration payable to respondent No. 1 is not vested in the Government which can only lay down rules relating to the conditions of service of the employees of the Company.
Thus unable to agree that, in these circumstances, the indirect control exercisable by the Government because of its power to appoint, the Directors and to give general directions to the Company can be held to make the post of Superintendent, Safety Engineering Department, an office of profit under the Government. he principles which will apply to the Company will be on a par with those applicable to other Government Companies or Companies in which the Government holds more than 25 per cent of the share capital. The Company cannot, therefore, be treated as either being equivalent to the Government or to be an agent of the Government, so that the control exercised by its Directors or the Managing Director over respondent No. 1 cannot be held to be control exercised by the Government. Therefore, respondent No. 1 cannot be held to be holding an office of profit under the Government of Mysore and was Pot disqualified from being chosen as a member of the Assembly of the State. Appeal dismissed.
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1969 (1) TMI 67
Issues:
1. Interpretation of the applicable provisions for revising assessment rates.
2. Determination of the limitation period for revision proceedings.
3. Legality of substituting the limitation period prescribed by different sections.
Detailed Analysis:
1. The judgment addressed a sales tax reference involving questions of law related to the revision of assessment rates. The main issue was to determine whether the action to revise the assessment was under section 22-B of the C.P. and Berar Sales Tax Act or other corresponding provisions. The case involved an assessee, a registered dealer engaged in the manufacture and sale of oil, who was assessed at a lower tax rate than required. The Additional Commissioner of Sales Tax initiated revision proceedings under section 39(2) of the Madhya Pradesh General Sales Tax Act, 1958. The Tribunal later set aside the Additional Commissioner's order, citing that the period for reassessment under section 11-A of the old Act had expired, making the revision proceedings under section 39(2) incompetent.
2. The judgment delved into the issue of the limitation period for revision proceedings. The period in question was governed by the Central Provinces and Berar Sales Tax Act, 1947, which was replaced by the Madhya Pradesh General Sales Tax Act, 1958. The court clarified that in cases governed by the old Act, the provision for revision would be section 22-B of the old Act. The court cited a previous decision to support the argument that if the period of limitation provided for revision in the old Act applied, the revision proceedings in the case were time-barred. The judgment emphasized that the proceedings in revision could not be construed as relatable to section 11-A of the old Act or section 19 of the new Act since the assessing authority was the Regional Assistant Commissioner, not the Additional Commissioner who initiated the revision proceedings.
3. The judgment provided clear answers to the questions raised. It concluded that the action to revise the assessment was relatable to section 22-B of the C.P. and Berar Sales Tax Act, 1947. Furthermore, it determined that the revision proceedings were indeed barred by time as they were initiated after the prescribed period under section 22-B of the old Act had expired. Consequently, the court declined to answer the third question as it did not arise based on the answers provided to the first two questions.
In conclusion, the judgment clarified the interpretation of relevant provisions, determined the applicability of the limitation period, and emphasized the importance of adherence to procedural requirements in revision proceedings under sales tax laws.
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